Last year, Adam MacNeil wrote an article outlining a newly implemented Federal Guideline directing Crown Prosecutors only to prosecute the most serious of drug possession charges. As he promised in his article, Adam will be providing an update with respect to the full practical implications of that guideline. Stay tuned.
Meanwhile, the opioid crisis has continued to worsen in Canada. It is apparent that a “tough on crime” philosophy which includes mandatory minimum sentences for drug offences and restrictions to the availability of non-custodial sentences has not necessarily led to its intended results. Instead, some argue that the “tough on crime” approach has done little with respect to getting drugs off our streets and instead, that it has contributed to an overrepresentation of minorities and other marginalized groups, including those suffering from substance abuse and mental health challenges, within the criminal justice system.
With a stated purpose of addressing these issues, the Honourable David Lametti, Minister of Justice and Attorney General of Canada, introduced Bill C-22, An Act to amend the Criminal Code and the Controlled Drugs and Substances Act. This Bill has proposed three areas of reformation:
(1) The repeal of all mandatory minimum penalties of imprisonment for offences under the Controlled Drugs and Substances Act and the repeal of mandatory minimum penalties for a tobacco offence and certain offences relating to the possession or use of firearms under the Criminal Code:
- Mandatory minimum penalties remove judicial discretion from the sentencing process. While many mandatory minimums have been declared unconstitutional by reason of the Canadian Charter of Rights and Freedoms (For example see: https://mms.watch/ which compiles mandatory minimum sentences and corresponding court decisions striking them down), the proposed amendments to repeal some mandatory minimum sentences would address some of the problems and allow judicial discretion in determining a punishment proportionate to particular circumstances.
(2) Changes to increase the availability of conditional sentences under the Criminal Code:
- Conditional sentences are jail sentences served in the community under strict conditions including house confinement, curfews, and restrictions on use of weapons, while also achieving the sentencing goals of deterrence and maintaining the safety of the community. These are used as a tool that aims for restorative justice. The Bill’s proposed amendments would maintain restrictions on the availability of conditional sentences for certain serious offences, but there are a number of offences that would now qualify for community sentences which were excluded prior. An example would be a charge of theft over $5000 where the Crown proceeded by indictment.
(3) Changes to the Controlled Drugs and Substances Act to promote the use of diversion for simple possession of drugs:
- The Bill would require police and prosecutors to consider alternative approaches in dealing with simple possession of drugs, such as diversion to addiction treatment programs instead of laying charges or arresting the individual in question.
Federal parties have had mixed levels of support for Bill C-22. The Green Party is calling on the government to decriminalize the possession of small amounts of opioids and other illicit drugs and create a national safe supply program. The NDP has stated that while the Bill has positive aspects, it does not go far enough in decriminalizing drugs and erasing criminal records for simple marijuana possession. The Conservatives have expressed an openness to less severe penalties and recognizing that there is a need to provide assistance to Canadians who have drug addiction and health problems.
At this point, Bill C-22 has only passed the first reading. It would need to receive royal assent before becoming law. With the federal election just recently being called, Bill C-22 has been effectively stopped in its tracks. We will have to see if Bill C-22, or a version close to it, is re-introduced in the next session of Parliament. This will obviously depend on what party(s) hold power in the coming months.
This Insight was co-authored by Serena Saini, Juris Doctor Candidate 2023, and Megan Ripplinger, Juris Doctor Candidate 2023.
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